July 22, 2013 – Can minor children sue for wrongful death when a parent is killed and leaves behind an estranged spouse? The Wisconsin Court of Appeals recently bypassed the question, asking the Wisconsin Supreme Court to decide.

In a certification, the appeals court notes that Wis. Stat. section 895.04(2) requires courts to set aside a child’s share of a surviving spouse’s recovery for wrongful death.

Billy Joe (Billy) and Linda Force were married in 1996, but separated six months later and never had children together. Billy, killed in a 2008 car accident, was the father of three daughters. In two separate actions, they sought recovery for wrongful death.

Minor children don’t have an individual cause of action to recover for wrongful death, unless there is no surviving spouse. But courts have not considered what happens where, as here, an estrangement precludes the surviving spouse’s recovery.

In this situation, conditioning a child’s recovery on the surviving spouse’s recovery might violate the Equal Protection Clause of the U.S. Constitution, the appeals court explained in Estate of Billy Joe Force v. American Family, 2012AP2402 (July 3, 2013).

Billy’s daughters argue that Wisconsin law treats them differently because of the estrangement. That is, the law only protects children of intact marriages who may receive a share of wrongful death recoveries through a surviving spouse.

Children whose parents are injured (or killed by medical malpractice) can sue for loss of society and companionship, but children whose parents die of nonmedical malpractice causes don’t have that option. They can’t sue for loss of support either; only surviving spouses can do that. Thus, the statute treats them unequally, the daughters say.

“We realize that a statute does not violate the Equal Protection Clause just because it is imperfect. “But the results here are arguably arbitrary and haphazard,” writes the appeals court, noting that a statute must have a rational basis for treating similarly situated claimants differently to pass constitutional muster.

The appeals court also asks whether public policy should allow Billy’s minor children to recover for wrongful death, just as children may recover on public policy grounds when a surviving spouse kills the decedent under Steinbarth v. Johannes. In that case, the court treated the husband as predeceasing the wife he killed intentionally.

“Public policy may dictate that Linda’s inability to recover due to her estrangement from Billy should not deny his dependent minor children a recovery,” the court noted.